Orown v. Orr

• Decision Date: 19 December 1893
• Citation: 35 N.E. 648,140 N.Y. 450
• Parties: OROWN v. ORR et al.
• Court: New York Court of Appeals Court of Appeals

140 N.Y. 450

35 N.E. 648

OROWN

v.ORR et al.

Court of Appeals of New York.

Dec. 19, 1893.

Appeal from supreme court, general term, second department.

Action by Dennis Crown, an infant, by Patrick Crown, his guardian ad litem, against John C. Orr and others, for damages for personal injuries. From a judgment of the general term (24 N. Y. Supp. 620) affirming the circuit court's judgment for plaintiff, defendants appeal. Reversed.

Butler, Stillman & Hubbard,(John Notman, of counsel,) for appellants.

Isaac S. Catlin, for respondent.

O'BRIEN, J.

The relation of master and servant existed between the plaintiff and the defendants at the time that the former received the personal injury for which he has recovered damages. The question presented is whether, upon any view of the evidence, the result can be attributed to any fault or neglect on the part of the master. The rules of law in such cases are well settled, but it is not always easy to apply them to the varying facts in each particular case. The master does not insure the servant against all accidents and mishaps that may befall him in the business. The servant, when he enters into the relation, assumes, not only all the risks incident to such employment, but all dangers which are obvious and apparent. The law imposes upon him the duty of self-protection, and always assumes that this instinct, so deeply rooted in human nature, will guard him against all risks and dangers incident to the employment or arising in the course of the business of which he has knowledge or the means of knowledge. If he voluntarily enters into or continues in the service without objection or complaint, having knowledge or the means of knowing the dangers involved, he is deemed to assume the risk, and to waive any claim for damages against the master in case of personal injury to him. Thomp. Neg. p. 1008; Haskin v. Railroad Co., 65 Barb. 129; affirmed 56 N. Y. 608; Jones v. Roach, 41 N. Y. Supp. Ct. 248. This principle applies to the plaintiff, though he was not at the time of full age. Like any other servant, he took upon himself the ordinary risks of the service, and all dangers from the use of machinery which were known to him, or obvious to persons of ordinary intelligence. De Graff v. Railroad Co., 76 N. Y. 125;King v. Railroad Co., 9 Cush. 112. He is bound to take notice of the ordinary operation of familiar laws, and to govern himself accordingly, and if he fails to do so the risk is his own. He is bound to use his eyes to see that which is open and apparent to any person so using them, and if he neglects to do so he cannot charge the consequences upon the master. The liability of the master for injuries to the servant received in the service is based upon his personal negligence, and the evidence must establish some personal fault or neglect of duty on his part, or what is equivalent thereto, in orer to justify a verdict, and he is entitled to the presumption that he has performed this duty until the contrary is made to appear. Wood, Mast. & Serv. §§ 345, 346; Cahill v. Hilton, 106 N. Y. 517, 13 N. E. 339. If the injury of the servant is attributable to the master's neglect in omitting to furnish safe and adequate appliances for the work, according to the nature of the business, or competent coservants, or even if he neglects to give persons unacquainted with the use of machinery proper instructions with respect to its use, he is liable.

It remains only to apply these principles to the facts of this case as disclosed by the testimony of the plaintiff himself. On the 10th of December, 1890, the plaintiff, who was then about 19 years of age, and in the employment of the defendants, lost his hand and part of the arm by coming in contact with the knives of a planing machine. No complaint is made that the machine was in any respect defective or unsuitable for the purpose for which it was used, or that the place where the plaintiff was directed to work was in any respect unsafe. The only omission of duty charged against the master in the complaint, or at least the only fault now urged, is that the plaintiff was ignorant of the use of machinery, and the defendants neglected to give proper instructions to him in this regard, or cause them to be given. When the accident occurred, the plaintiff had been at work in the shop about three weeks. His duty was to stand in front of the machine, and about four or five feet from the end of it, and take off the dressed lumber after it had passed through the planer, and when moved to where he stood by the action of the machine and the use of a small roller and horse attached. He was not required to operate or handle the machine itself, but was cautioned against meddling with its operation. There were four of these machines in the room, under charge of a man who assigned the plaintiff to one of them to take the boards away, and load them...